S. K. MOOKHERJEE, J. ( 1 ) THE present Second Appeal, at the instance of the plaintiff, is directed against the judgment and decree dated 29. 11. 1975 in Title Appeal No. 188 of 1960 passed by the learned Subordinate Judge, Second Court, Midnapore, affirming those dated 7. 5. 1960 passed by the learned Munsif, Second Court, Contai, in Title Suit No. 132 of 1958, dismissing the plaintiff's suit under, Order 21 Rule 103 of the Code of Civil Procedure for setting aside the order of dismissal of Misc. Case No. 129 f 1957 of the First Court of the learned Munsif, Contai, upon declaration that the plaintiff is entitled to get back possession of the suit land. ( 2 ) THE disputed property originally belonged to one Nabin Chandra Jana, who transferred the same to his two nephews Rudra Narayan and Markanda Jana, both sons of Kamal Lochan Jana, in equal shares; Rudra Narayan was succeeded by his only son Bhuban and Markanda by his only son Jiban; on 2. 6. 1951 Jiban sold his eight annas share to one Tarani Kumar Jana; on 6. 8. 1958 Bhuban sold his eight annas share to the predecessor-in-interest of the present plaintiff; defendant No. 1 auction purchased he suit property in Execution of a Money Decree obtained by him against Jiban and took delivery of possession whereupon the aforesaid proceedings were initiated by the plaintiff, the purchaser from Bhuban. ( 3 ) THE defence of the auction purchaser (defendant No. 1) was that there was an amicable partition between Jiban and Bhuban whereupon entire suit property has been allotted to Jiban, who sold half of the same to Tarani and the remaining half had been auction purchased by the said defendant. Plaintiff being purchaser from Bhuban had no title to claim with regard to the suit property. ( 4 ) FROM the records it appears that while deciding a Second Appeal (S. A. No. 1217 of 1961) the High Court remanded the appeal to the lower appellate court for a fresh hearing after setting aside the judgment and decree of the lower appellate court impugned in the said Second Appeal. ( 4 ) FROM the records it appears that while deciding a Second Appeal (S. A. No. 1217 of 1961) the High Court remanded the appeal to the lower appellate court for a fresh hearing after setting aside the judgment and decree of the lower appellate court impugned in the said Second Appeal. While so remanding, the High Court granted liberty to the parties to adduce fresh evidence and, in particular, to defendant No. 1 to prove four documents upon allowing an application made on behalf of the defendant for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure after taking notice of the position that if there was a partition as alleged, on behalf of the defendant, the plaintiff would not be entitled to any relief in his suit. The lower appellate court was directed to dispose of the appeal in accordance with law and after considering the alleged admission in those documents made by M. Jiban. ( 5 ) AFTER remand the trial court as well as the lower appellate court came to a concurrent finding believing the defends case of amicable partition between Rudra and Markanda, the predecessor-in-interest of Bhuban and Jiban, and dismissed the suit upon holding that since the suit property, on such partition, was allotted to Jiban exclusively, the present plaintiff, being a purchaser from Bhuban, could not acquire any title to the said property. In arriving at such finding the lower appellate court disbelieved the oral testimony of the witnesses of the plaintiff on the ground of inherent vulnerability and contradictions and found as a fact that Jiban was in exclusive possession of the suit property and on the basis of such exclusive possession believed the defence case of previous partition. The lower appellate court further found the Nabadi Deed and Sale Deed by Bhuban to be not bona fide. ( 6 ) IN arriving at the aforesaid conclusion, the lower appellate court had failed to take into consideration the version of D. W 2 that the alleged amicable partition took place in or about 1920. The lower appellate court further found the Nabadi Deed and Sale Deed by Bhuban to be not bona fide. ( 6 ) IN arriving at the aforesaid conclusion, the lower appellate court had failed to take into consideration the version of D. W 2 that the alleged amicable partition took place in or about 1920. The lower appellate court also failed to take into consideration the effect of recitals and/ or contents in the different deeds and/or documents, which were marked as exhibits e. g. plaintiff's exhibits 1, 2, 1a and 5, and defendant's exhibit 'c' to the effect that there was no amicable partition and only for convenience of possession the properties involved in suit owned jointly by Rudra and Markanda had been separately possessed. The lower appellate court erred in. law in treating the exclusive possession as equivalent to partition, particularly when on the date of alleged partition, the parties admittedly, were owning, different properties apart from the property in suit and there was no material to show that such properties also were partitioned. The approach. of the lower appellate court has gone contrary to the principles of law relevant in the facts and circumstances as above. Reference may be made to the cases of Bharat Singh vs. Bhagirathi, reported in AIR 1966 SC 405 , Abhimannu vs. Ananda, reported in 88 Calwn 246, Kuladaprosad vs. Sadhu Charan, reported in 20 Callj 32 and Anand Kishore vs. Daiji Thakurain, reported in 21 CLJ 296. ( 7 ) FOR the foregoing reasons, the impugned judgment and decree cannot he sustained. The vital fact of partition between Rudra and Markanda, the two brothers, has not been properly investigated but has been inferentially arrived at deserving an interference in Second Appeal on the authority of decisions in the cases of Ramlal vs. Dhirendra reported in 47 Calwn 489, Kuppuswami vs. Arumagam reported in AIR 1967 SC 1395 and Sheikh Rahamat Elahi vs. Md. Hayat Khan reported in 70 Indian Appeals 225. ( 8 ) IN the result, the appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside and the appeal is remanded back to the lower appellate court for reconsideration afresh on merits on the basis of existing materials and evidence and in the light of my observations above. There will be no order as to costs. The judgment and decree of the lower appellate court are set aside and the appeal is remanded back to the lower appellate court for reconsideration afresh on merits on the basis of existing materials and evidence and in the light of my observations above. There will be no order as to costs. ( 9 ) NO formal decree need be drawn up. ( 10 ) SINCE the matter is an old one, it is desirable that the appeal be disposed of as expeditiously as possible and preferably within a period of six months from the date of communication of this order to the concerned Court below. The office is directed to send down the records forthwith. Appeal allowed.